Under the facts of this case, we hold the decision of State v. Frazier, 30 Kan.
App. 2d
398, 42 P.3d 188, rev. denied 274 Kan. ___ (2002), will not be retroactively applied
in a K.S.A.
60-1507 collateral attack of an unappealed conviction after a favorable plea agreement for the
reasons set forth in our opinion.

We decline to apply our Frazier decision retroactively in a collateral attack on
an
unappealed guilty conviction and affirm the trial court.

On October 12, 1999, Wilson pled no contest to possession of
ephedrine/pseudoephedrine, contrary to K.S.A. 1999 Supp. 65-7006(a), attempted manufacture
of methamphetamine, contrary to K.S.A. 65-4159 and K.S.A. 21-3301, and possession of
methamphetamine with intent to sell, contrary to K.S.A. 65-4161. After an extensive plea hearing,
Wilson was found guilty on all three charges.

Wilson's pleas were the result of a favorable plea agreement where, in exchange for the
three no contest pleas, the State dismissed nine counts in the three cases where he pled and
completely dismissed all charges in two other cases.

On March 14, 2000, Wilson was sentenced to 146 months for possession of
ephedrine/pseudoephedrine, a severity level 1 drug felony, 45 months for attempted manufacture
of methamphetamine, and 20 months for possession of methamphetamine with intent to distribute.
All three sentences were ordered to run concurrently. Wilson did not appeal.

On March 15, 2002, the Kansas Court of Appeals handed down its decision in State
v.
Frazier. The Frazier court found K.S.A. 2001 Supp. 65-7006(a) to be
equivalent to the statute
prohibiting possession of drug paraphernalia, K.S.A. 2001 Supp. 65-4152(a)(3), a drug severity
level 4 felony, and directed the level 1 sentence to be modified to a level 4 sentence.

Wilson subsequently filed a motion, contending he was illegally sentenced and asked his
level 1 sentence be reduced to a level 4 sentence which with his time served would result in his
release.

The trial court ruled in October 2002 that Wilson's K.S.A. 60-1507 motion could not be
used to attack a sentence which Wilson failed to appeal. The court held the original sentence was
appropriate for Wilson's criminal history considering the severity level of the crime at the time
sentence was imposed and that the Frazier decision was not to be applied
retroactively.

From this ruling, Wilson appeals.

The only issue we face is whether our decision in State v. Frazier is to be
applied
retroactively. If it is, Wilson's sentence must be reduced to that which is appropriate for a severity
level 4 felony. If it is not, the original sentence imposed by the trial court must be served.

Wilson contends the question of whether Frazier is to be applied retroactively
is a
question of law over which our review is unlimited. State v. Donlay, 253 Kan. 132,
133-34, 853
P.2d 680 (1993). In addition, an illegal sentence may be corrected by an appellate court at any
time. State v. Sisk, 266 Kan. 41, 43, 966 P.2d 671 (1998).

The State suggests our standard of review of the denial of a K.S.A. 60-1507 motion is to
determine if there is substantial competent evidence to support its findings and if those findings
are sufficient to support its conclusions of law. Edwards v. State, 29 Kan. App. 2d
75, 25 P.3d
142 (2001). The State also cites Donlay for the rule that our review of questions of
law is
unlimited.

We first point to the statutory wording of the two statutes in issue in this appeal. K.S.A.
1999 Supp. 65-7006(a), the statute in effect at the time Wilson committed the crime, provides: "It
shall be unlawful for any person to possess ephedrine, pseudoephedrine or phenylpropanolamine .
. . with intent to use the product as a precursor to any illegal substance." By comparison, K.S.A.
65-4152(a)(3) states, in relevant part: "No person shall use or possess with intent to use . . . any
drug paraphernalia to . . . manufacture . . . a controlled substance in violation of the uniform
controlled substances act." The definition of drug paraphernalia includes all equipment, products,
and materials used or intended for use in manufacturing a controlled substance. K.S.A.
65-4150(c).

Where two offenses contain identical elements but carry different severity level
classifications, a defendant convicted of either crime may be sentenced only according to the
lesser severity level. State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989).

In Frazier, this court concluded that possession of ephedrine or
pseudoephedrine and
possession of drug paraphernalia, as proscribed in K.S.A. 1999 Supp. 65-7006(a) and K.S.A.
65-4152(a)(3), respectively, are identical offenses despite their variations in terminology:

"Both offenses prohibit the possession of ephedrine or pseudoephedrine for use
in the manufacture of a controlled substance. Ephedrine or pseudoephedrine
fall within the definition of drug paraphernalia because they are materials used
to manufacture a controlled substance. See K.S.A. 65-4150(c).

". . . Although the statutes use different language, they require the
same requisite criminal intent and, as such, the elements are identical. As a
result, we find that possession of ephedrine or pseudoephedrine and possession
of drug paraphernalia are identical offenses." 30 Kan. App. 2d at 405.

This court vacated Frazier's sentence and remanded the case with directions to impose a
sentence consistent with the penalties for a drug severity level 4 felony.

As we have previously stated, our case, while factually following the Frazier
scenario,
differs because Wilson is collaterally attacking his sentence by way of a K.S.A. 60-1507 motion.
He could have raised the precise question decided by Frazier on appeal, but he failed
to do so. In
addition, he received the benefits of a very favorable plea agreement with numerous counts and
two companion cases dismissed.

The State asks us to rely on the rule of State v. Neer, 247 Kan. 137, Syl.
¶ 3, 795 P.2d
362 (1990), that "[a] new constitutional rule of criminal procedure generally will not be applied
retroactively to cases on collateral review." There are several very limited exceptions to this rule,
but the problem with the State's argument is that we are not here dealing with a "constitutional
rule of criminal procedure" and Neer is simply not applicable to our situation.

Wilson recognizes that Frazier represents new case law but contends the only
period for
which the concept of retroactiveness must be considered is if the statute (K.S.A. 1999 Supp.
65-7006[a]) were being applied to a defendant prior to its original enactment before July 1, 1999.
This argument, like the State's Neer argument referred to above, has no applicability
to our
situation because Wilson's criminal acts took place September 1, 1999. On that date, both L.
1999, ch. 170, § 12 (K.S.A. 1999 Supp. 65-7006[a]) and L. 1999, ch. 170, § 4
(K.S.A. 1999
Supp. 65-4152[a]) were in full force and effect.

An alternative argument that Wilson can make is that his situation is like that in State
v.
Williams, 250 Kan. 730, 829 P.2d 892 (1992). In Williams, a lesser penalty
resulted from a
holding that where there is a single act of forcible sexual intercourse and the defendant is related
to the victim, the crime which is committed is aggravated incest, K.S.A. 21-3603(1), a class D
felony, and not indecent liberties with a child, K.S.A. 21-3503(1)(b), a class C felony. Aggravated
incest was deemed to be the more specific crime because of the relationship of the parties. The
Williams opinion stated the legislature appeared to reason it was a less serious offense
when the
victim was related to the defendant than when there was no family relationship.

Based on the Williams holding, a K.S.A. 60-1507 motion was filed in
Carmichael v. State,
255 Kan. 10, 872 P.2d 240 (1994), contending the district court lacked jurisdiction to convict
Carmichael of rapes of his granddaughter. The Court of Appeals agreed and reversed the rape
convictions. 18 Kan. App. 2d 435, 448, 856 P.2d 934 (1993). Our Supreme Court reversed the
Court of Appeals, holding there was jurisdiction to convict Carmichael but that the
rape sentences
were to be vacated and Carmichael was to be resentenced for aggravated incest. 255 Kan. at
19-20.

The holding of Carmichael can be argued to compel and justify a retroactive
application
of Frazier in a collateral attack situation. Unfortunately for Wilson, the general versus
specific
situation in Carmichael is reversed in his case as the language of K.S.A. 1999 Supp.
65-7006(a)
is more specific and K.S.A. 65-4152(a)(3) is the more general crime.

In addition, K.S.A. 1999 Supp. 65-7006(a) is the later enacted criminal statute;
possession of ephedrine and pseudoephedrine is specifically prohibited with intent to use the
product to manufacture a controlled substance and the violation level is raised to a severity level 1
felony, indicating a legislative intent to treat Wilson's activity more harshly. There remains,
however, the argument that the two crimes are identical and under the reasoning of
Carmichael
and Nunn, only the sentence for the lesser severity level could be entered.

A case that is more compelling to us is the recent decision in Easterwood v.
State, 273
Kan. 361, 383, 44 P.3d 1209 (2002), which held that intervening appellate decisions interpreting
the felony murder statute did not apply retroactively to a defendant's collateral attack on his
felony murder conviction. Also of interest is the decision in Whisler v. State, 272
Kan. 864, 36
P.3d 290 (2001), holding that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d
435, 120 S.
Ct. 2348 (2000) (and our Kansas case of State v. Gould, 271 Kan. 394, 23 P.3d 801
[2001]), do
not apply retroactively to cases on collateral review.

While language of both cases is instructive, we will focus on Easterwood as it
relates to
the announcement of a new rule of case law while Whisler involved a constitutional
rule of
criminal procedure. This difference was pointed out in Easterwood, 273 Kan. at 371,
which we
will not here repeat.

In Easterwood, the defendant pled guilty to felony murder following the death
of a co-felon by a law enforcement officer. There was a favorable plea agreement. Easterwood did
not
appeal. Several years later, he filed a K.S.A. 60-1507 motion which was denied by the district
court. While this ruling was being appealed, the Kansas Supreme Court handed down two
opinions, State v. Sophophone, 270 Kan. 703, 19 P.3d 701 (2001), and State v.
Murphy, 270 Kan.
804, 19 P.3d 80 (2001), which were favorable to Easterwood. The Sophophone facts
were nearly
identical, as the deaths in both cases resulted from the lawful acts of law enforcement officers.

On appeal, Easterwood challenged his felony murder conviction and argued that it should
be set aside or his guilty plea withdrawn. Easterwood contended that the Sophophone
and
Murphy decisions should be applied retroactively to allow him to attack his
conviction on
collateral review based on the United States Supreme Court decision in Bousley v. United
States,
523 U.S. 614, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998).

We will not here repeat Easterwood's detailed discussions of
Bousley and Fiore v. White,
531 U.S. 225, 148 L. Ed. 2d 629, 121 S. Ct. 712 (2001), 273 Kan. at 373-79, which concluded
state courts were under no constitutional obligation to apply their criminal decisions retroactively
and federal decisions did not compel that Easterwood's contentions be followed. The
Easterwood
decision also pointed out that State v. Neer, 247 Kan. 137, involved a constitutional
rule of
criminal procedure and not a rule of substantive law. 273 Kan. at 380.

Ultimately, Easterwood relied on the fact he had received a favorable plea agreement, he
had been told by counsel that felony murder might not fit his situation, and he elected not to
gamble on the outcome of a trial and appeal. The court stated: "We will not now retroactively
decide that his plea is void because of a later favorable ruling on the precise issue he voluntarily
declined to challenge." 273 Kan. at 383.

There are significant similarities between the Easterwood decision and
Wilson's case.
There is also one significant difference.

Wilson, like Easterwood, received a favorable plea agreement. In exchange for his pleas of
no contest, the State dismissed nine counts in the three cases he pled to and completely dismissed
two other cases. In addition, the sentences were imposed concurrently.

The significant difference is that there was no discussion by counsel shown of record that
Wilson might argue for the Frazier result. It is perfectly logical that with K.S.A. 1999
Supp. 65-7006(a) so new and Wilson facing so many counts and charges that even if the
argument had been
raised the detriments would outweigh the possible benefits of fighting the Frazier
issue in the
district and appellate courts along with all the existing charges. Based on the lack of a record
before us, it is not proper for us to speculate on facts that may or may not have been a part of the
plea negotiations.

We decline, under the facts presented to us in this case to rule that Frazier
must be
applied retroactively. To do so would give Wilson a double benefit, a favorable plea agreement
and then the benefit of an issue he initially failed to raise on appeal. Carmichael, 255
Kan. 10, is
not applicable for the reasons previously set forth.

First, the sentence imposed by the district court in Frazier was not illegal. In
State v.
Duke, 263 Kan. 193, 194, 946 P.2d 1375 (1997), the court stated:

"We have defined an illegal sentence as a sentence imposed by a court without
jurisdiction, a sentence which does not conform to the statutory provision, either in the character
or the term of the punishment authorized, or a sentence which is ambiguous with respect to the
time and manner in which it is to be served. [Citation omitted.]"

In Frazier, the district court clearly had jurisdiction of subject matter and the
person of the
defendant with the sentence imposed as proscribed for a drug severity level 1 felony. Even if
K.S.A. 1999 Supp. 65-7006(a) and K.S.A. 65-4152(a)(3) are identical crimes as held in
Frazier,
the fact remains Frazier was charged under 65-7006 and did not interpose any objections before
the district court. In labeling the sentence as "illegal," the Frazier panel was able to
avoid the
thorny questions that arise when a defendant plea bargains and enters a dispositive plea.
Moreover, Frazier purports to be grounded upon the holdings in State v.
Nunn, 244 Kan. 207,
768 P.2d 268 (1989), and State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), but
neither case
holds the underlying sentence to be illegal. Rather, Nunn adopts the holding in
Clements that
"[a]s to identical offenses, a defendant can only be sentenced under the lesser penalty." 241 Kan.
at 83. This does not suggest to me that imposition of the greater sentence was illegal, it was
simply the wrong sentence under the circumstances of the case.

Secondly, K.S.A. 65-4152(a)(3) and K.S.A. 1999 Supp. 65-7006(a) are not identical
offenses. As correctly noted by the Frazier panel, the statutes use different language
to describe
the respective offenses. Notwithstanding, the panel then proceeds to conclude this is a distinction
without a difference as both prohibit the same identical conduct. The difficulty is that both
statutes do not prohibit the same identical conduct. K.S.A. 1999 Supp. 65-7006(a) prohibits
possession of drugs used to make methamphetamine. K.S.A. 65-4152(a)(3) prohibits possession
of drug paraphernalia. To conclude that the offenses are identical required the Frazier
panel to
construct an interpolation inconsistent with the logic and expressed reasoning in
Nunn and
Clements. In both of those cases the allegations to support a charge of either
aggravated criminal
sodomy or indecent liberties were identical:

"Aggravated criminal sodomy is:

"(a) Sodomy with a child who is not married to the offender and who is under 16
years
of age." K.S.A. 1987 Supp. 21-3506.

"(1) Indecent liberties with a child is engaging in any of the following acts with a
child
who is not married to the offender and who is under 16 years of age:

. . . .

(b) sodomy." K.S.A. 1984 Supp. 21-3503.

As the Supreme Court could not divine legislative intent when faced with two statutes that
were identical as to elements, the common sense result was to conclude only the lesser penalty
could be imposed to prevent arbitrary charging by prosecutors. To extend the Nunn
and
Clements holdings to the circumstances of Frazier is unwarranted. The
elements test is tenuous,
and the result wholly ignores legislative intent to ratchet up the penalty for possession of
ingredients necessary to cook methamphetamine while imposing a less severe penalty for
possession of drug paraphernalia.

I concur in the majority's opinion affirming the judgment of the district court.